The Obama and McCain split on Guantánamo

June 18, 2008

A Supreme Court ruling last week on Guantánamo detainees wasn't simply a legal decision. The 5-to-4 ruling also opened a campaign debate over whether Americans will leave themselves vulnerable to terrorists if they strictly adhere to their civic ideals in this global war.

Even more, the decision revives an unspoken but noble notion that Americans should be willing to die at the hands of jihadists if the alternative is a compromise on the rule of law and other legal virtues.

The ruling granted a basic right to the "enemy combatants" at the US base on Cuba: the right of habeas corpus, or court protection against arbitrary detention. Even though the detainees are aliens held on foreign soil, the court said they can ask a US federal judge to demand evidence from the military on whether they are too dangerous to release. Gone is a restriction on such court review passed by Congress in 2006.

Of some 270 detainees still at Guantánamo, about 80 are considered by the military to be too dangerous to be let go, although the Pentagon doesn't have enough evidence to charge them with war crimes. Some could soon go free if a US judge – a civilian – so decides.

With the coming election of a new Congress and either John McCain or Barack Obama as president, voters now have an opportunity to influence whether the two elected branches will challenge the court's decision.

Mr. Obama would likely do nothing. He praised the ruling, saying it rejects "a false choice between fighting terrorism and respecting habeas corpus."

Mr. McCain sees no false choice. He said "our first obligation" is the security of the nation and its troops, and "this decision will harm our ability to do that."

Their comments echo those of the divided court. "Liberty and security can be reconciled," the majority ruled. But a dissenting justice predicted lower courts will possibly release dangerous detainees and "almost certainly cause more Americans to be killed."

Both sides are wrong or right in part. McCain and other security-first conservatives must see they cannot pick and choose from the Constitution during a war that is really a war of ideas with radical Islam. Many detainees have been let go after being found innocent – winning points with Muslims. Abusing the core standards of Western civilization also drives away many allies needed for this war, which only leads to more American soldiers being killed.

McCain does know better. In 2005, he received – and welcomed – a letter from Capt. Ian Fishback, who witnessed US troops violating US ideals in Afghanistan. The captain wrote: "I would rather die fighting than give up even the smallest part of the idea that is America."

Obama and the court's majority also should know better. They cannot suggest that no judge will ever let a dangerous detainee walk free. Even the military has mistakenly released some 30 detainees who returned to fighting Americans or their allies. In May, one of them killed Iraqi soldiers with a suicide bomb. Obama would be more honest if he admitted lives might be lost if the US adheres to its civic ideals.

America's identity rests on its ideals, such as due process. They help preserve a quality of life that may require a sacrifice of life.